W e have prepared this Alert to advise preferential leave - PDF document

G Employment Law Alert November 2005 Employer’s Even-Handed Adherence to Gender-Neutral Medical Leave Policy did not Violate the New Jersey Law Against Discrimination (“LAD”) By: David M. Wissert, Esq. and Kristen L. Laracca, Esq. W e have prepared this Alert to advise preferential leave treatment for pregnant you of a recent decision by the New employees for the employer to avoid a claim of Jersey Supreme Court that affects all “disparate impact” gender discrimination under employers. In Gerety v. Atlantic City Hilton the LAD. Casino , et.al. (A-33-04), a female employee Background exceeded her maximum twenty-six weeks of leave Both the New Jersey Family Leave Act “NJFLA” because of a difficult pregnancy and was and the federal Family and Medical Leave Act terminated pursuant to the defendant Atlantic “FMLA” require that a qualifying employer provide City Hilton Casino’s (“Hilton”) medical leave its eligible employees with up to twelve weeks of policy. The New Jersey Supreme Court unpaid, job-protected leave for certain family and considered whether Hilton’s medical leave policy medical reasons. The FMLA allows twelve weeks violated the LAD because the policy did not during a consecutive twelve month period, while the provide more than twenty-six weeks leave to the NJFLA allows twelve weeks per each twenty-four pregnant employee. The Supreme Court month period. Family reasons include care for the answered this question in the negative and held employee’s child after birth or placement for that because Hilton’s leave policy was applied in a adoption or foster care or to care for the employee’s non-discriminatory fashion to all of its employees spouse, son, daughter, parent or parent-in-law who without exception, application of the policy to the has a serious health condition. Medical reasons plaintiff did not violate the LAD. The Court include a serious health condition of the employee concluded that the LAD does not require an that makes the employee unable to perform his or employer to deviate for pregnant employees from her job (FMLA only). the even-handed application of its gender-neutral medical leave policy, which, in Gerety , already Hilton’s medical leave policy at issue in Gerety provided more leave than any relevant federal or provides more than the law requires of employers. state statute requires. This means that as long as Hilton’s policy authorizes two types of leave: that an employer’s medical leave policy applies equally available pursuant to the FMLA and the NJFLA, as to men and women, and otherwise complies with well as that provided by the terms of its own medical applicable law, employers need not provide leave policy. Hilton’s policy, though not mandated This document is published by Lowenstein Sandler PC to keep clients and friends informed about current issues. It is intended to provide general information only. L Roseland, New Jersey Telephone 973.597.2500 65 Livingston Avenue www.lowenstein.com 07068-1791 Fax 973.597.2400

G by law and offered to its employees on its own and her leave thereafter as a leave under Hilton’s initiative, allowed for twenty-six weeks of leave extension policy. Plaintiff’s pregnancy-related (including FMLA and NJFLA leave) for any medical medical problems continued, resulting in her reason, including pregnancy. The policy further absence from work for more than the twenty-six provides that any employee unable to return to work weeks allowed under Hilton’s family leave policy. after twenty-six weeks is deemed to have resigned. Because Hilton strictly enforced its medical leave Although those employees may reapply for policy, it terminated plaintiff’s employment on employment, if rehired they lose seniority and other April 2, 1998 when she failed to return to work, carryover benefits that were available had the twenty- although she did not return based on her doctor’s six weeks not been exceeded. Hilton’s leave policy is instructions. After plaintiff gave birth to twins on facially neutral in that it treats men and women alike in April 15, 1998, she would have become eligible for respect of the number of days they family leave under the NJFLA, had the gap not are allotted for medical disability. Further, in the occurred between Hilton’s twenty-six week leave implementation of its leave policy, Hilton maintains period and her twins’ birth. Plaintiff filed a a strict, no-exceptions standard: under no complaint alleging, among other things, gender circumstances will requests for medical leaves of discrimination in violation of the LAD. absence in excess of twenty-six weeks be granted At issue before the Court was Hilton’s denial of and if the employee takes more than the maximum the plaintiff’s request that her leave be extended twenty-six weeks of leave, that employee is terminated beyond the limits of Hilton’s policy so as to from employment, but is eligible for rehire. accommodate the entirety of her pregnancy. Our courts have recognized two theories of relief when The New Jersey Supreme Court’s analyzing discrimination claims under the LAD - Decision: disparate treatment and disparate impact. The In Gerety , the employee exceeded her maximum record showed that plaintiff was treated no twenty-six weeks leave because of a difficult differently than other non-pregnant Hilton pregnancy and was terminated pursuant to Hilton’s employees whose leave had expired and who were policy. The plaintiff was employed by Hilton from terminated for not returning to work 1989 until she was discharged on April 2, 1998. notwithstanding a valid medical inability to do so Plaintiff discovered that she was pregnant in (disparate treatment). Thus, the New Jersey September 1997. In October 1997, the plaintiff Supreme Court analyzed the Gerety case under a sought disability leave because of pregnancy- “disparate impact” theory of relief. Disparate related medical concerns, continuing through impact involves employment practices that are December 1, 1997. Plaintiff later extended her facially neutral in their treatment of different leave request through February 1, 1998. Hilton approved both periods of leave, designating her groups, but that, in fact, fall more harshly on one leave through December 16, 1997 as FMLA leave group than another and cannot be justified by

G business necessity. A disparate impact claim does Hilton’s policy impacts men and women equally not require the plaintiff to demonstrate proof of the and specifically prohibits any exceptions to the employer’s discriminatory motive. Rather, a maximum limit, a prohibition to which Hilton had plaintiff must show that a facially neutral policy adhered without exception. On its own initiative, resulted in a significantly disproportionate or Hilton chose to extend another ninety-eight days adverse impact on members of the affected class, of medical leave to its employees, more than here, pregnant women. doubling the leave period required by law. The Court further noted that neither state nor federal The plaintiff argued that Hilton’s policy visited law requires an employer to provide greater than a disparate impact on women because only women can become pregnant and only pregnant women twelve weeks of medical leave within a twelve can experience high-risk pregnancies that require month period for pregnancy-related or other extended absences from work (up to nine months). medical needs. She asserted that the LAD requires preferential treatment to pregnant women in the form of an The Impact of Gerety v. Atlantic City exception from the twenty-six week limit on the Hilton Casino amount of medical leave that Hilton provides for its What does this mean to you as an employer? This employees because that is the only way that Hilton ruling means that if an employer treats its pregnant could avoid negatively affecting women by employees no differently than comparable non- operation of its gender-neutral policy. pregnant employees in need of extended medical leave, then the LAD is not violated. It is therefore The Court found that while it is true that in their employment actions employers may not critical that, as an employer, you are prudent in discriminate against a female employee because she creating and drafting policies and practices and in is pregnant, that does not mean that an employer evaluating existing policies to be certain that the discriminates simply by adopting and adhering to a policies are gender-neutral and are applied leave policy that even-handedly provides male and evenhandedly to both men and women without female employees alike with lengthy periods of exception. If this is the case, an employer’s failure to medical leave that, nonetheless, may not cover provide enhanced leave allotments for its pregnant completely the entire period of time that an employees, who may require more time off than the employee’s health needs may require. In so employer’s policy permits, will not constitute gender holding, while underscoring the theme of equal , but discrimination prohibited by the LAD. not preferential treatment, the Court reasoned that whatever the cause of the medical condition,